Short Summary
Sun Patent Trust sought suspensive effect under Rule 223 of the Rules of Procedure to prevent the disclosure of highly confidential information (HCI) to three designated Vivo employees pending its appeal of a Paris Local Division confidentiality order in a patent infringement action concerning EP 3 852 468. The Court of Appeal held the application admissible but not well founded, finding that Sun Patent failed to establish the appeal would become devoid of purpose or that its interests outweighed Vivo's interests in timely access to the HCI for filing submissions.
Detailed Summary
This procedural order concerns an application for suspensive effect filed by Sun Patent Trust in the context of a patent infringement action against Vivo entities regarding European Patent EP 3 852 468.
Background: On 18 April 2025, Sun Patent Trust brought an infringement action against Vivo Mobile Communication Co., Ltd., Vivo Tech GmbH, and Vivo Mobile Communication Iberia SL before the Paris Local Division, alleging that the terms of a licence offered to Vivo were FRAND. On the same day, Sun Patent filed an application for protection of confidential information under Rule 262A RoP, seeking to restrict access to unredacted versions of the statement of claim and relevant exhibits containing highly confidential information (HCI) to certain persons, including Vivo's legal representatives and up to three Vivo employees. Sun Patent subsequently narrowed its request to an 'External Eyes Only' regime, excluding Vivo employees entirely.
On 31 July 2025, the Paris Local Division issued the impugned order restricting access to confidential and highly confidential information to specific persons, including three Vivo employees. Sun Patent's initial application for suspensive effect (filed 12 August 2025) was rejected as inadmissible because no Statement of appeal had yet been filed and no appeal fee had been paid. After lodging the Statement of appeal on 16 August 2025, Sun Patent filed the present application for suspensive effect on 17 August 2025.
Sun Patent's request: That the appeal have suspensive effect to prevent disclosure of the HCI to the three designated Vivo employees until a final decision by the Court of Appeal. Sun Patent argued that an appeal would become pointless if the HCI were disclosed and that suspensive effect was necessary to safeguard its rights to be heard and to a fair trial.
Vivo's request: Rejection of the application as inadmissible under Rule 223.5 RoP (which provides no suspensive effect for appeals of orders under Rule 220.2 RoP), or alternatively as unfounded, arguing that enforcement of the impugned order did not raise a risk of manifestly disproportionate and irreparable consequences.
Court's reasoning: The Court of Appeal held the application admissible, noting that although Rule 223.5 RoP provides no suspensive effect for orders under Rule 220.2 RoP, this does not preclude an application for suspensive effect based on the prevalence of Article 74 UPCA (citing the CoA order of 19 June 2024 in ICPillar v. ARM). However, the application was not well founded. The Court reasoned that an exception to the principle of no suspensive effect may apply if the appealed order is manifestly erroneous or if the appeal becomes devoid of purpose (citing NUC v WARMCOOK and ICPillar v. ARM). Sun Patent failed to establish that the appeal would become devoid of purpose because: (i) the issue concerns not only access to HCI but also the conditions and extent of its use; (ii) all persons with access, including the three Vivo employees, are bound by a duty not to use or disclose the information for any purpose other than the court proceedings, with culpable breaches sanctionable by penalty payments; (iii) Sun Patent did not demonstrate, based on previous behaviour, a risk that the employees would breach their duty; (iv) if the Court of Appeal were to revoke the impugned order, the employees would no longer have access to or be allowed to use the HCI; and (v) Sun Patent's alternative request regarding employees' involvement in licensing negotiations could be addressed in the appeal proceedings. Furthermore, Sun Patent did not demonstrate that its interests in excluding the three employees from the confidentiality club outweighed Vivo's interests in granting immediate access, given the current deadlines for Vivo to file its written submissions and the relevance of the HCI to those submissions.
Decision: The Court of Appeal rejected the application for suspensive effect.
Practitioner Note
This case demonstrates the evidentiary and procedural standards applied in patent matters before Luxembourg (LU). Understanding the court's reasoning in Sun Patent Trust vs Vivo Mobile Communication Co., Ltd., Vivo Tech GmbH, and Vivo Mobile Communication Iberia SL is valuable context for structuring arguments or assessing risk in similar proceedings.
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